Acting Chairman

Before we proceed with the amendments I would like to remind Senators that the proposer of an amendment may close the debate on that amendment but no other Senator may speak more than once on each amendment.

What we have got in the Criminal Justice (Forensic Evidence) Bill is a substantial piece of legislation which seeks to harness technological developments that have occurred in recent times in the fight against crime. For that reason, we feel it is extremely important that proper well-thought out, relevant amendments would be introduced, as we have done — we have introduced 16 amendments — and that they would be accepted by the Minister. We are very concerned that so far the Minister has not accepted any of them.

We have here on the Report Stage three of the central amendments which we feel would plug the loopholes or the gaps in this legislation. We feel the legislation is flawed and perhaps nowhere so much as in section 2, because effectively what the Bill is stating is that there really is little or no need to provide caution or restraint in the exercise of these extremely wide powers. This section is a prime example of that.

This section makes provision for a person in custody under the provisions of section 30 of the Offences Against the State Act, 1939. We all know just how wide the powers are in that Act in relation to offences, scheduled and unscheduled, and in relation to the length of time of detention — 24 hours with the possibility of doubling that to 48 hours on the authorisation of a superintendent. In the Criminal Justice Act, 1984 the powers are extremely wide also.

We are trying to say that the reference should be to "appropriate samples" rather than have a catch-all phrase which covers every single possible test and sample. It should not be "all or" but should be "any". In other words, it should provide that the appropriate sample would be taken rather than that potentially the entirety would be open to be taken. Consider what can be done. Under section 2 (1) (a) a sample of blood can be taken with consent and with a medical practitioner being there. In other words an assault on a person with a needle and a sample of their blood is taken. Under section 2 (1) (a) (ii) pubic hair, again with the consent of the person, can be taken but it can be taken forcefully if that consent is not given and with a medical practitioner being there. So a public hair is either pulled out or cut off. A urine sample can be taken without the presence of a medical practitioner. Under subsection (1) (a) (iv) saliva can be taken, consent will be requested. In relation to subsection (1) (a) (v) — a hair other than a pubic hair — a garda is simply entitled to take that without provision as to how it will be taken. It can be forcefully pulled or it can be cut. A nail can be taken off the finger of an individual or part of a nail without any supervision. A garda has the authority to take it without a medical practitioner being present. All of these can be taken off the same individual. "In relation to any material found under a nail", a garda can poke under a nail to take a sample there. Subparagraph (b) refers to a swab from any part of the body other than a body orifice or genital region. Again, there is no medical person present while the person presumably is stripped and can have their body searched and a swab taken from them. Sub-paragraph (c) refer to a swab from a body orifice or genital region. In that case consent would be sought and a medical practitioner would be present for that but that is a considerable instruction on the personal privacy of an individual. For a dental impression consent is required and the presence of a medical practitioner. The last item refers to a footprint or a similar impression of any part of the person's body other than a part of his hand or mouth. All of that can be taken by a garda, without the presence of a medical practitioner.

Consider how wide and how extensive are the quantity and the quality of the intervention with the person's bodily integrity.

The section says that every single one of these testings can take place on a single individual. Surely that is unnecessary? If this legislation is intended to update us on technological developments that have taken place in relation to genetic fingerprinting — and we have been told that enormous strides have taken place — what is the necessity for all of these samples being taken in any situation? Surely the appropriate sample is all that is required? It is just part of the approach which prvades this Bill, namely, the catch-all nature of the Bill, that we have the powers as extensive as possible with a limited amount of restraint. It is, therefore, a flawed Bill.

Any Bill that gives powers without restraints is a flawed Bill. Here, seemingly, is an attempt to do just that. There is no justification in the eyes of any reasonable person to require all of these samples. The Bill would be much better, much more reasonable, much less open to abuse, if our amendment was accepted. We acknowledge that technological developments should be introduced but the powers should be given in such a manner as to be appropriate to what the occasion demands. The amendment is a very valuable one and we would like the Minister to accept it.

I wish simply to reiterate what Senator Costello has just said in relation to the very wide powers which are provided for. This matter has been debated very extensively at the earlier Stages. If I remember correctly, I sought an explanation why, at the present level of development in forensic science, it would be necessary to obtain all of those samples Senator Costello has mentioned. I did not obtain an explanation then. I would welcome it even at this late stage.

I have a certain knowledge of these affairs and I would certainly have great difficulty in accepting why that range of sampling and analysis could be necessary in anything like what one might call the average case.

It is all right to say that the Garda will be reasonable or, for that matter, that medical practitioners will be reasonable. Indeed, I have no doubt that they will. At the same time, I imagine that good legislation will narrow down what can be done to what needs to be done rather than to provide a wide range of powers and possibilities which really are fairly brain-blowing when you think of them — the capacity to take off a nail. A full nail is provided for in this Bill. This is dark ages stuff. Why in the name of anything that is good and holy are we providing for the taking off of somebody's nail? Would it ever be necessary? If it is not necessary why is that provision allowed in the Bill? We should be told why. If legislation is to be appropriate then we should narrow things down to providing for what needs to be done.

First, I would like to refer to the contribution by Senator Costello. He obviously made an inadvertent reference when he suggested that a pubic hair could be taken forcibly without consent. I want to make it abundantly clear that a pubic hair cannot be taken forcibly without consent. In relation to the suggestion by Senator Upton that a full nail can be taken, the Bill states categorically that it is a sample of a nail. In relation to this amendment by the various Senators to delete "all or" in section 2 (1) the primary reason why the words "all or" are included in subsection (1) is to make it absolutely clear that the Garda can obtain more than one type of sample from a person.

They are also there to allow for the possibility that in an appropriate case it would be open to the Garda Síochána to obtain all the samples referred to in the subsection. I fully accept that the number of cases in which it would be necessary for the Garda to seek all the types of sample which are listed in subsection (1) are likely to be very few — I repeat, very few. Where such cases occur, take, for example, a very serious sexual assault — that was referred to by Senator Conroy on Committee Stage — I believe the Garda should be in a position to obtain whatever samples are required to assist them in bringing the perpetrator to justice.

I would add that subsection (1) would not allow a garda in every case to take all of the samples which are mentioned. This, of course, is because a Garda officer of at least superintendent rank must authorise the taking of every sample and before such authorisation can be given the offender must have reasonable grounds for believing that the sample will tend to confirm or, indeed, disprove the involvement of a suspect in the offence under investigation. Obviously, a superintendent could not issue an authorisation for the taking of a sample unless it could be established that the sample could be used in the investigation of the offence in question or he would leave himself open to very serious disciplinary charges.

As I said on Committee Stage, I am satisfied the Garda will not take people off the street willy-nilly for the sake of taking samples. They must have reasonable grounds for this. While the amendment is possibly well intended, since the Committee Stage it has been given further serious thought. I regret that I cannot accept the amendment. The Bill is better standing as it is with the words "all or" included.

The Minister referred to a number of items to which Senator Upton and myself referred in our remarks. Firstly, in relation to my reference to the pubic hair, I was distinguishing between various samples that can be taken, some where consent is sought, some where a medical adviser is present, some where a medical adviser is not. That is the context in which I refer to the pubic hair.

In relation to the Minister's remarks about taking a sample in paragraph (6), "a sample of a nail" is certainly a very vague wording. That to my mind is quite open to interpretation as to whether the entire nail, a small part of the nail, a large part of the nail can be taken. If you take a sample of a hair, presumably you are taking a sample of the entire hair. If you take a sample of a nail, are you taking a sample of the entire nail or part of the nail? It is certainly left open to that. It is badly worded, badly drafted. We want to pick up the flaws in the Bill. We are not opposed to the Billper se. It is the flaws in the Bill we are concerned about.

In relation to the central issue of all the samples, the Minister has put his finger on it himself. He said that the intention of the Bill is that samples should be taken as required. That is precisely what we were saying, the appropriate sample, not all samples. Not all of these situations would give rise to sampling but that as required, as appropriate. The Bill leaves it wide open and in the process leaves it wide open to abuse.

We are told that genetic finger printing is a very precise art, a very precise science so, therefore, even if it a serious offence once you have got one sample then you should be able to determine from that sample, once it is the appropriate sample, what your needs are in relation to determination of the offence. That is the point we are getting at.

On a previous occasion when discussing this Bill I asked the Minister of State, Deputy Leyden, to make a statement in relation to statistics in which wide powers were given under the Offences Against the State Act and the Criminal Justice Act in relation to superintendents authorising their right to extend powers of detention from 24 hours to 48 hours and from six hours to 12 hours. The Minister said he would get that information. The Minister of State here today came back the next day to say no such information existed, no statistics had been compiled. I stated that from my contacts with legal people — lawyers, barristers, solicitors — that provision was a mere formality, that superintendents granted the permission and that it seemed to be giving the veneer of importance and authority that the permission was granted only by a person of the rank of superintendent. There is scope for abuse. We are trying to tie down the Bill so that the scope for abuse is not there. We are not saying that it is taking place, but the fact is that the scope is there and it is included in this section.

In the past, there has been quite a lot of trouble in this country and, in our island neighbour, in relation to allegations of ill-treatment. Some were proven, perhaps some were not. People have doubts. There are many people in prison at present because of the wide powers exercised by the Garda and by police forces in other countries as well.

We established an O'Briain committee of inquiry to provide safeguards which expressed very considerable concern about the wide powers that were given in certain emergency types of legislation. The Offences Against the State Act is emergency legislation passed in 1939, renewed in 1972, and the provisions extended in the 1984 Criminal Justice Act. The Barra O'Briain committee warned that those wide powers, established in so much of our legislation, gave rise to abuse. Therefore, in order to provide good legislation it is very important that we specify the powers we are giving to our police force. It is in their interests, in our interests and in the interests of the citizens of the State and it is with that view that we are putting forward this amendment.

Question, ‘That the words proposed to be deleted stand", put and declared carried.

This refers to two provisions in the Bill which apply to minors — paragraph (b) minors under the age of 17 and in paragraph (c) under the age of 14. We had quite a thorough discussion of this on an earlier Stage. Of all sections I have to state that we find these two paragraphs repugnant. As was said before, they really refer to minors and are matters which could be properly dealt with under the new Children Bill, which is at present before the other House.

In my view, section 6 is completely wrong. It is saying that the consent of a person under 18 years is to be given by the person himself or by a parent or guardian. I do not believe that can be real consent, because in other areas such consent is not binding on a person who is a minor, unless it is for his or her benefit. That is the manner in which contracts are entered into. They are null and void unless any contract, any agreement, in which major consent is granted is for the benefit of the minor.

There is a grave constitutional question as to whether a minor's constitutional rights, the right to bodily integrity, as stated in the Constitution in Article 40, can be consented away by someone else. As described in the section, that may mean a guardian or a parent. Can a person in authority, even a guardian and a parent, consent away the rights of an individual? Certainly there is a grave constitutional matter here. We must remember that a guardian could also refer to a corporate body, an institution, what constitutes a fit person and so on.

Under this section if the person does not consent, an adverse inference can be drawn. That is irrelevant from what I have said and it leads to bad law. The provision in paragraph (b) is a serious matter in relation to the whole question of minors under the age of 17. I feel the Bill is totally wrong in incorporating that.

In relation to paragraph (c), I have no doubt at all that this should not have been included. It is an outrageous paragraph to have in a Bill of this type, stating that in the case of a person who has not attained the age of 14 years the consent of a parent or guardian will do. It is a perverse proposition to state that a child can be criminally responsible from the age of seven to the age of 14, and all that that entails, and at the same time to state that that child's consent will not be asked for in the very intrusive sampling of parts of his or her body.

It looks more like an Irish solution to an Irish problem. They are mature enough to have committed a crime but not mature enough to be asked for their consent in relation to an intrusion on their bodily cells. The only proper thing that can be done in relation to this paragraph is to remove it entirely, to deal with it under the 1988 Bill that is presently before the Dáil. We assume that that Bill will incorporate a provision for an increase in the age of criminal responsibility. Certainly it could no longer remain at the ludicrous age of seven. Indeed, the Bill, by implication, having removed the consent from the child under 14 years of age — we are talking about children remember — implies that the question of maturity is something which does not exist to the same degree under 14 years of age. Therefore, that would imply that the age of criminal responsibility must be raised to a higher level.

This is a matter we feel very strongly about. We dealt with it at length on Committee Stage; we requested the Minister to deal with it, if not in exactly the terms we suggest but to take on board the intent of what we are saying. At this stage we feel that he might agree to do that. We are concerned with improving the legislation, not with being obstructive and we feel that this is a most appropriate area in which the Minister could be helpful. He would improve the Bill if he were.

I support what Senator Costello said, particularly in relation to this contradiction, where in one situation the consent appears to be important and in another situation the children's consent does not count.

The amendment was discussed at length on Committee Stage last week. The approach which the Bill already adopts in relation to parental consent is the correct one. The Bill must provide for the taking of samples from persons under 17 years because, as we are all aware, crimes are committed by persons in that age group, sometimes serious crimes.

With regard to the specific issues of consent, provision has been made in the Bill of a requirement of parential consent in the case of a person under 17 years of age where an intimate sample is being sought. Where the person is over 14 but under 17 he or she will also have to consent to the taking of such a sample.

I believe that what is being done in the Bill represents a fair and reasonable approach to the problems that arise where samples are required from persons of immature years. I do not think it is necessary that the consent of an under-14 year old should be obtained in these cases. I am satisfied their interests and rights would be fully safeguarded by their parents, and indeed by their doctor or dentist as the case maybe. As I said on Committee Stage, I doubt whether a child under 14 years of age would be capable of understanding the significance of consent in the context of the Bill and I would think such consent would be rather meaningless. I suppose the questions could be asked what value would consent have if it was given, could one be sure that it was a free and informed consent, would there not be a grave doubt that a child might simply agree, out of fear of refusing?

I want to refer to the Senator's remarks about minors and their contracted obligations. This is not relevant. We are talking here about criminal law, not civil law. The age of criminal responsibility is seven and full criminal responsibility is 14 years of age. This is what is relevant in this case. Cases arise of young people committing very serious offences. There is no constitutional difficulty with what is proposed in this Bill and I regret I must oppose this amendment.

There is a connection between the civil and criminal side. We are concerned about a person's maturity and that person's ability to give his or her name to something in terms of a contract. It requires maturity and responsibility. The same principle holds goods in criminal law. Maturity and responsibility are both necessary principles. The Minister has said there would not be much sense in having the consent of the child, because the child would not be capable of understanding, but the child is capable of committing the offence and is being regarded as having responsibility from the age of seven.

There is a certain perversity of logic here. On the one hand there is responsibility when it comes to penalising the child but, on the other hand, when you are giving the child the benefit of offering his consent or refusing it, then you say he is not capable of doing it. I fail to understand the principle of that logic.

With regard to the constitutional aspects, what the Minister has said has not satisfied me in any way. He has not given any grounds as to why there might not be a test of the constitutionality of this section of the Bill. I must remind the Minister that the wording in paragraphs (b) and (c) is precisely the wording in the British legislation, the Police and Evidence Bill passed in 1984 and that wording was taken verbatim from that Bill without any consideration of constitutional requirements because they did not have to consider constitutional requirements as there is no Constitution in that country.

A precise wording from one jurisdiction will not necessarily suit the situation in another jurisdiction. It is unsatisfactory. We have had our freedom since 1922 and the least we can do is to put together our own legislation, not five-year-old legislation presented in carbon copy fashion from another jurisdiction, especially when there are legal implications. I believe there are legal implications in this and I ask the Minister to reconsider that point.

Question, "That the words proposed to be deleted stand", put and declared carried.

"(4) (a) The Minister shall make regulations in relation to the testing of samples for the purpose of this Act.

(b) The regulations shall make provision for the independent testing of samples."

This is the final amendment. These three amendments were taken as critical areas which the Labour Party felt needed to be amended because we felt this was a good Bill flawed by substantial errors. We are asking in this amendment that the Minister make regulations in relation to the testing of samples for the purpose of the Act and that these regulations make provision for the independent testing of samples. That is what we call a modest and reasonable proposal.

There are certain regulations in relation to the taking of samples. There are none in relation to either the destruction of samples or the testing of samples. We have to ask who will test these samples? They have not been identified. What training will they have? This has not been established.

This is a new area of science. Under what conditions will the samples be tested? What conditions will operate from the taking of the samples — look at the quantity of samples we are dealing with — in the Garda station or the prison and when they arrive at the centre where the testing is to take place? Will the Garda be responsible for their removal, for minding them while they are in the Garda station? When will they be taken out of the Garda station? How will they be transported? What monitoring will take place? What supervision will take place? Where will they be tested? Where is the testing laboratory? Is it the Garda Technical Bureau, the Forensic Science Laboratory? Will it be farmed out to agencies to be tested? What will be the supervision of the testing? I understand it is an extremely labour-intensive business to test the genetic factors — we are talking about over 100,000 genes — and that it is done very slowly, that it takes a lot of time and therefore there could be the possibility of faults and fabrication. There is the possibility of sloppy procedures, inadequate training, care and caution. All of that is very relevant but there is nothing in the Bill relating to any of this.

I would like to raise the question of the defence. Will the defence have access to these samples for their own testing? What will happen to the samples? Will any of them be destroyed in the testing? Will they be available for the defence to make independent tests? There is no reference to this whatsoever in the Bill. Is it possible that some test could result in the destruction of a sample? I would hardly agree with what Senator Neville said on Committee Stage on the previous occasion. In relation to the whole area of the breathalyser, there is no reference to the possibility of a sample being made available independently to be tested by the defendant and his counsel. Is that intended? It would certainly be one-sided justice if the sample was available to the prosecution but not available to the defence.

I want to refer to the enormous cost involved in any test. It is extremely labour-intensive. There are 100,000 genes to be compared and it is an expensive business. Who will pay for the test? For example, if the defence require a test, will they be obliged to pay for it? If there are to be so many tests as described in section 2, then it will be an extremely expensive business on the State and the defence.

In matters of this nature it is extremely important that regulations be made, that they provide for independent testing, that the samples be available to the defence and that the regulations be put before the Houses of the Oireachtas, so that the matter can be debated. That is the proper way to do it. Regulations were provided under the Criminal Justice Act and it would be desirable that this established precedent be continued. The regulations could be examined by this House and by the Dáil and we would have an opportunity to debate and amend them, so that the Houses of the Oireachtas would be satisfied that adequate regulations had been provided for the testing of the samples.

I support Senator Costello's amendment. What he says is entirely true. It is important for a number of reasons that provision be made for independent testing. It is important at a scientific level that independent laboratories compare values with whatever laboratory the State employs to carry out this type of testing. It is bound to result in an improvement in standards. It is fairly standard practice in laboratories to send a certain proportion of samples to other laboratories, usually outside the country, in order to validate the methods, and to confirm that their results are comparable to what is being obtained elsewhere; in other words to ensure that the results are not biased. These tests are very time-consuming and expensive. It will be expensive for defendants to get samples tested. It would also be expensive on the State. There is also the question of the destruction of these samples; how long they need to be stored; and what changes will occur in samples during storage. None of these things is covered in the legislation. It is important that regulations be made to cover them.

Another important matter is that inevitably, with the passage of time, the technology and methodology used in testing these samples is bound to change. It is important that provision is made to introduce these changes as soon as possible after they become available. Again, there is a possibility under this Bill that important technological advances may not be introduced when it would be entirely appropriate that they should. Inevitably, the process involved will be speeded up. That, of course, would make the possibility of having the samples tested by the defence so much easier than would appear to be the case now.

In supporting Senator Costello's amendment, I would like to preface my statement by saying that I welcome the Bill. It is an excellent Bill. It is important that the Garda have available to them the most up-to-date technology in crime prevention and detection. DNA fingerprinting provides cohesive and conclusive evidence of the guilt and, more importantly, the innocence of suspects.

I fully agree that the Minister should make regulations in relation to the testing of samples. It is important that everybody concerned has full confidence in the procedures adopted. This will ensure that proper facilities and systems are in place. It will also protect the people involved in introducing the procedures and those involved at the point of taking the test to the point of producing and submitting the reports.

I also support amendment No. 3 (b) which provides that "The regulations shall make provision for the independent testing of samples." While I have full confidence in the Garda forensic laboratory, every organisation and every system is subject to human error and a facility should be available to have the sample of an accused person independently tested and checked. This is, as I have already said, an expensive procedure. A person who may not have the means to test DNA independently, should have available to him a facility to check it without incurring expense. Again, I want to emphasise that is not casting aspersions on the Garda forensic laboratory.

Amendment No. 3 provides that futher subsections (4) (a) and (b) be inserted in section 5. In relation to that, I wish to state that the vast majority of the samples taken, including samples for DNA testing under the power provided in the Bill, will be sent for testing to the Forensic Science Laboratory at Garda headquarters and tests will be carried out there. This laboratory is currently staffed by some 24 highly qualified scientists under the directorship of Dr. Jim Donovan. This laboratory has earned a high reputation in the relatively short number of years it has been in operation. Its competence and objectivity has at no time been called into question.

The actual tests which are carried out in the laboratory are of a scientific nature and many of them very complex. It would be both inappropriate and well-nigh impossible to prescribe in regulations how such tests should be performed. Like any expert evidence, medical or scientific evidence of the results of forensic testing must be assessed by the court.

In so far as there may be concern about how samples are handled after they are taken and before they reach the Forensic Science Laboratory, the position is that they are treated like any other piece of physical evidence, that is to say they must be dealt with in a manner which will later establish to the satisfaction of the court, should the issue arise, that there could be no question of tampering and that it is safe to admit the evidence obtained from tests of the sample. I would not agree that regulations are needed in this matter.

In so far as the question of a suspect being entitled to have independent tests carried out, as I said on Committee Stage it is fully possible at present. It is not uncommon for the accused to retain the services of an independent finger print expert where fingerprint evidence is an issue. I believe there is no need to make regulations for the matters covered by this amendment. It is proper to point out to the House that each test costs in the region of £200. I can confirm that the test would be carried out by the Forensic Science Laboratory. Senator Neville referred to independent testing of samples. This is possible and it is open to any accused person to have tests carried out in a private laboratory if he wishes to challenge the accuracy of the State's evidence. It is also important to point out that if the accused is covered by the legal aid scheme, the independent testing is covered under the same scheme. As I said earlier in relation to the other amendments, they are possibly well-intentioned, but if they were to be included this section would be unworkable.

The Minister has stated that the samples in the majority of cases — to use his words — would be tested in the Forensic Science Laboratory at Garda headquarters. Is there an implicit suggestion that the facilities at the Forensic Science Laboratory would not be adequate or that it is likely that a further source would be used? If that is the case, that is all the more reason to make independent testing available. I am glad to hear the Minister say that it would be available. Remember, not so long ago fingerprint evidence went astray in the Garda Technical Bureau. One would have thought that nothing could go wrong with something as foolproof as fingerprint evidence, but in the case of the investigation into the assassination of the British Ambassador it was discovered that an entirely innocent person had been attributed with having the fingerprints in question. A more recent example, is the case of the Birmingham Six, where the forensic testing was not properly conducted or monitored, though it was carried out in the confines of the police forensic laboratory. Nevertheless, a miscarriage of justice occurred. We are seeking to prevent the situation where something can go wrong. I do not believe that there should be reasons for not having regulations to govern forensic testing. We are seeking to establish procedures that will be followed by those involved. It is reasonable for us to request that the procedures be included in legislation. It is not unreasonable that regulations covering the procedures to be followed in testing should be put before this House.

It is in the interest of everybody involved, the prosecution, the Garda and the defendant, that matters be clearly stated, so that nobody could at any future time raise doubts or point a finger wrongly. I ask the Minister to reconsider this matter. The precedent was developed in the Criminal Justice Act, 1984, whereby regulations on certain matters were put before the Oireachtas. It is appropriate that regulations be put before both Houses, that we have an opportunity to examine them, so that the House would be satisfied that proper procedures for testing were in place.